Proposed state law would exempt Texas-made guns from federal regulation

COLIN GUY

Published 12:00 am, Saturday, May 9, 2009

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Tyler Shelander, 21, a member of the Army National Guard, tries out his newly bought 45 caliber Springfield Armory XD pistol equipped with a Laser and flashlight at Leger's Shooting Range. Dave Ryan/The Enterprise less

Tyler Shelander, 21, a member of the Army National Guard, tries out his newly bought 45 caliber Springfield Armory XD pistol equipped with a Laser and flashlight at Leger's Shooting Range. Dave Ryan/The ... more

Proposed state law would exempt Texas-made guns from federal regulation

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A bill filed in the Texas House of Representatives this session aims to free Texas-made guns from federal regulation, but is more about state's rights than gun rights according to its author's staff.

Under the proposed law if a gun was made in Texas, has "Made in Texas" stamped on it and is sold only within the state, federal firearms laws would not apply, such as a 1994 ban on assault weapons that expired in 2004, but that some believe could be renewed.

However, skirting federal gun laws is not the primary goal of the legislation, which, if passed, could lead to a courtroom showdown between the state and federal government over the extent of federal authority.

"(The bill) deals with firearms and ammunition, which raises eyebrows, but it's more of a 10th Amendment bill than a Second Amendment bill," Andy Kuchera, legislative director for Leo Berman, R-Tyler, the bill's author, told The Enterprise by phone. "Sovereignty is a big issue right now."

Passage of the bill would not necessarily lead to much change for gun buyers right now, Kuchera said, but could relieve an estimated 300 Texas "mom and pop" gun and ammunition makers from dealing with federal red tape if they chose to limit their sales to Texas.

Federal authority to regulate firearms and other products comes from the interstate commerce clause in the Constitution, which states that Congress can pass laws affecting trade between the states.

Berman's bill raises the argument that if a gun is made in Texas and never leaves the state, laws passed by Congress shouldn't apply to it. The proposed law would not apply to fully automatic firearms, which would continue to be regulated by the federal government.

A similar law to Berman's bill will take effect in Montana on Oct. 1, and Alaska's legislature is considering passage of the Alaska Firearms Freedom Act.

Passage of the Texas bill could be difficult, as the current legislative session will end by June 1.

"There are tons of people trying to get their bills on the floor," Kuchera said, noting that anything not scheduled for a vote by May 12 won't be considered by this session of the Legislature.

Should it pass, the bill could face further hurdles if it's challenged in the courtroom, which appears to be the intent. Under the proposed law, as soon as someone notifies the Texas Attorney General's Office that they intend to manufacture a firearm without abiding by federal regulations, the office would be required to seek a ruling from a federal court that the gun maker is acting within the scope of the constitution.

Zack Hawthorn, a Beaumont criminal defense attorney, said it could be difficult to overcome the legal precedent set by Wickard v. Filburn, a U.S. Supreme Court case from 1942 concerning the commerce clause.

In that case a farmer was fined for growing more wheat than allowed by federal law. He argued that because the wheat was grown for his own consumption, Congress has no right to tell him how much he can grow and that the commerce clause shouldn't apply.

"Of course, the Supreme Court said that whatever wheat you used to eat, that's one less bushel some guy in Indiana could sell to you," Hawthorn said, adding that the idea that something can even indirectly affect trade between the states has been used to justify federal regulation of firearms and other products for decades.

Hawthorn said the commerce clause has also been used to justify federal jurisdiction over robberies, on the basis that the money taken from the victim could have been used to purchase out-of-state supplies for their business.

If any part of a "Made in Texas" gun, or the base materials, came from outside the state, that would likely be used as justification for continuing federal regulation, Hawthorn said.

If the effort by Berman and lawmakers in Alaska and Montana succeeded in the court system, there could be repercussions for gun owners should Congress pass a new law, such as a renewal of the ban on assault weapons, as some in Southeast Texas fear.

Under the 1994 assault weapons law, a semi-automatic rifle could not include more than two of the following features:

----a folding or telescoping stock;

----a pistol grip that protrudes conspicuously beneath the action of the weapon;

----bayonet mount;

----a flash suppressor;

----a grenade launcher.

If Berman's bill was passed into law and upheld by the courts, Texas gun-makers would not be bound by these restrictions, or by other federal regulations that some Southeast Texans fear will come to pass during President Barack Obama's presidency.

"I'm an old, Texas-raised boy and like what the bill is supposed to do," said Lance Caraway, owner of Gunslinger's in Jasper, by phone. Caraway said some customers are afraid that Obama will approve a law requiring them to register their guns, something that would not be required of a Texas-made firearm if Berman's bill passed and was upheld by the courts.

When asked about requiring registration during the 2008 Democratic Debate in Las Vegas, Obama responded that he doesn't believe "we can get that done," and that he respects the Second Amendment but also wishes to reduce gun violence.

"It is very important for many Americans to be able to hunt, fish, take their kids out, teach them how to shoot," Obama said, according to OntheIssues.org, a non-partisan Web site operated by researchers from the Kennedy School of Government, Columbia University and other institutions. "Then you've got the reality of 34 Chicago public school students who get shot down on the streets of Chicago. We can reconcile those two realities by making sure the Second Amendment is respected and that people are able to lawfully own guns, but that we also start cracking down on the kinds of abuses of firearms that we see on the streets."

While Obama has expressed favor for a renewal of the assault weapons ban in the past - during an Oct. 21, 2004, debate with Illinois Senate rival Alan Keyes, he said he believes it is a scandal that Bush did not renew the law - he has more recently stated that it would be difficult, is not a high priority and that he would prefer to focus on enforcing existing laws, according to an April 16 Associated Press report.

Whatever happens, Tyler Shelander, a 21-year-old member of the U.S. Army National Guard, said he is not terribly concerned by any potential new gun laws, recognizing that with each administration, new rules will come and go.

"If it happens, it happens," Shelander, who is preparing to deploy overseas, said while target-shooting with a newly acquired handgun at Leger's gun range.

Tom Oxford, a Beaumont attorney with libertarian leanings, said he favors federal oversight of firearms, despite a political outlook that typically favors little federal influence on the states.

"Weapons, to some extent, do need to be regulated because of the potential for hurting us and reasonable regulations would be best," he said, adding that it would be better to have one set of rules than 50.

Still, Oxford said, the argument that locally made firearms don't affect interstate commerce could be a compelling argument by proponents of the bill.